Filed 12/15/21 P. v. Smith CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, E077246 v. (Super.Ct.No. FSB05283) WILLIAM SHAWN SMITH, OPINION Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Dismissed.

William Shawn Smith, in pro. per.; and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

INTRODUCTION In 1995, a jury convicted defendant and appellant William Shawn Smith of attempted carjacking (Pen. Code,1 §§ 664, 215, count 1) and robbery (§ 211, count 2).

On February 2, 1996, a trial court found true the allegations that he had two prior serious felony convictions and had served two prior prison terms. (§§ 667, subds. (b)-(i), 667.5, subd. (b).) It then sentenced him to a total term of 25 years to life.

On January 21, 2020, defendant filed a motion for modification of his sentence pursuant to section 1016.8. The court held a hearing on February 16, 2021, and denied the motion.

Defendant filed a notice of appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and defendant has filed a personal supplemental brief. We dismiss the appeal.

Defendant has also filed a petition for writ of habeas corpus. The habeas petition will be addressed by separate order.

PROCEDURAL BACKGROUND A jury convicted defendant of attempted carjacking (§§ 664, 215) and burglary (§ 211). He waived his right to a jury trial on the prior convictions. A trial court found the prior conviction allegations to be true. On February 2, 1996, the court sentenced defendant to 25 years to life in state prison under the three strikes law.

Among other issues, he argued that the trial court erred in denying his previous motion to strike his prior conviction from May 14, 1986. (People v. Smith (Feb. 4, 1997, E017795) [nonpub. opn.].) In the previous motion, he had argued that the prior conviction was invalid for failure to meet the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. This court concluded that the trial court properly denied the motion, and we affirmed the judgment. (People v. Smith, supra, E017795.)

On January 21, 2020, defendant filed an in propria persona motion to modify his sentence pursuant to section 1016.8. He argued that the two prior plea bargains, under which he pled guilty to the convictions that were used as strikes in the instant case, were invalid. Thus, he asked the court to vacate the 25-year-to-life sentence and resentence him to 14.5 years. On February 16, 2021, the court denied the motion concluding that section 1016.8 had “nothing to do with a resentencing or striking of [a] prior strike that [was] alleged previously . . . .”

Defendant filed a notice of appeal in propria persona.2 DISCUSSION On the court’s own motion, the appeal is dismissed because it is taken from a postjudgment order that does not affect defendant’s substantial rights. (§ 1237,

Here, the execution of defendant’s sentence began in 1996, long before he filed his motion to modify the sentence in 2020. Unless an exception to the general rule applies, the trial court did not have jurisdiction to rule on his motion, and the appeal must be dismissed. (Torres, supra, 44 Cal.App.5th at pp. 1084-1085.) Defendant’s claim does not fall within any exception, and he does not claim otherwise. (See Id. at p. 1085.)

Section 1237, subdivision (b), provides that a defendant may appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.” Since the trial court did not have jurisdiction to rule on the motion to modify his sentence, its order denying such motion did not affect defendant’s substantial rights and is not an appealable

postjudgment order. Therefore, the appeal from the order must be dismissed.3 (Torres, supra, 44 Cal.App.5th at p. 1084.)

Therefore, we order the appeal dismissed.

DISPOSITION Defendant’s appeal of the order denying his motion to modify his sentence pursuant to section 1016.8 is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

MILLER Acting P. J.

SLOUGH J.